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Brown v. United Parcel Service, Inc.

Court of Appeals of Arkansas

October 4, 2017



          Sutter & Gillham, P.L.L.C., by: Luther Oneal Sutter; and Baker & Schulze, by: J.G. "Gerry" Schulze, for appellants.

          Waller Lansden Dortch & Davis, LLP, by: John E.B. Gerth and Aron Z. Karabel; and Quattlebaum, Grooms & Tull PLLC, by: E.B. Chiles IV, for appellee.

          ROBERT J. GLADWIN, Judge

         Debbie Jean Brown and Louise Pilz filed suit against their employer United Parcel Service, Inc. (UPS), for violations under the Arkansas Civil Rights Act (ACRA).[1] Ark. Code Ann. §§ 16-123-101 to -108 (Repl. 2016). Following a jury trial in the Pulaski County Circuit Court, a verdict was rendered in favor of UPS. Appellants argue on appeal that the trial court erred in denying their motion for directed verdict and in rejecting their proposed jury instruction on UPS's "honest belief" defense. We affirm.

         Brown filed her complaint against UPS on October 16, 2013, alleging that she had been subjected to gender discrimination and retaliation at her workplace. She claimed that UPS had violated the ACRA by retaliating against her, harassing and intimidating her, and refusing to promote her. On October 11, 2014, Brown's complaint was amended and supplemented to add Pilz's allegation that she had been denied the same benefits as males who work for UPS and had been denied equal pay in violation of the Arkansas Equal Pay Act. Both appellants sought general and punitive damages. UPS responded, denying appellants' allegations.

         At trial, Naaman Kelley, Jimmy McClure, Cedric Williams, Quentin Goodwin, and Dante Tippin testified on behalf of appellants. Naaman Kelley, a twenty-seven-year employee with UPS working in Little Rock as division manager, testified that Brown is a female part-time supervisor for UPS in Little Rock. He said that UPS had not been very consistent with respect to its promotional process during his tenure. He said that Brown is an outstanding person, tells the truth, and is qualified for "any job in that hub." He explained that MAPP (Management Assessment and Promotion Process) is similar to an aptitude test. He said that if UPS follows its policy, the MAPP test must be passed in order for anyone to be considered for a full-time slot. He said that he had been told by Charlotte Westmoreland, who had previously worked in the human-resources department, that Brown had passed the MAPP test. He said that if Brown had failed it, there should be a record. He testified that of all the supervisors that had been working "out there, " very few approached or exceeded Brown's qualifications. He said that over the last four or five years, Brown had not passed the MAPP test, and he had told her several times to take it again. He said that he did not believe that Brown was being discriminated against, retaliated against, or treated unfairly. He thought that the promotional practice was being unfairly administered. He stated that to be qualified for a promotion one must pass the MAPP test and that Brown had not, to his knowledge, passed it under his tenure. Even though he was told she had passed it prior to his tenure, he did not go and look at the actual document. He said that Brown had not met the requirements for promotion during his tenure.

         Jimmy McClure testified that he is the area human-resources manager in Arkansas for UPS and before that had worked at the Little Rock hub. He said that Brown is a good employee who knows her job. He thought Brown could cover for a full-time supervisor and that it was not uncommon for a part-time supervisor to do so. A part-time supervisor is guaranteed 27.5 hours a week. He said that he knew of some of Brown's complaints but could not remember specific conversations with others in management. He also knew that Brown had engaged in protected activity by instigating a lawsuit and that meant she should not be retaliated against. He thought that Brown could "possibly" be a full-time supervisor in the absence of the MAPP requirement. He said that he did not know if Brown had the skill set to perform the job function of full-time supervisor.

         McClure said that Pilz works in the Texarkana facility as a part-time supervisor. He said Pilz had passed MAPP, and he was aware of her claim that she should have been promoted. He said that Pilz was a good, loyal employee at UPS. He acknowledged that James Thompson had been promoted in Texarkana and that Thompson had a lot of experience driving a package truck. He said that Pilz did not have driving experience and that there is a preference for driving experience in the position of on-car supervisors.

         Cedric Williams testified that he is the twilight hub manager at UPS in Little Rock and that Brown works for him in the hub. He said that he was testifying under subpoena and that he supports Brown's position in this case. When he took his current position, Brown talked to him a lot about how to run the hub. He said that Brown could be a full- time supervisor "without a doubt." He said Brown always arrived around two hours before her shift started and worked off the clock. He said that he was "talked to" about having a conversation with Brown to tell her to stop working off the clock, but he never told her to quit coming in early. He said that Brown worked full-time supervisor's hours.

         Quentin Goodwin testified that he has worked at UPS for nineteen years and that he had supervised Brown in 2007-2008. He said that he could not name a more qualified person in hub operations than Brown. He said that Todd Hyden knew that Brown had been coming in early back in 2007-2008 and that Brown deserved to be a full-time supervisor based on her skills and ability. He said that Brown was more qualified than Antonio Rich, who is a hub supervisor. He said that he had worked in Texarkana in 2014 and that Pilz was a go-getter. He said that Kim Loftin in Texarkana had needed assistance, and Goodwin had helped him "with some rides." He said that there is a preference for fulltime supervisors to have driving experience, but a preference is not the same as a requirement. Texarkana is one of the most complicated centers in the district. Goodwin said that because there are all kinds of operational concerns in the Texarkana hub, "we'd like to have full-time supervisors with driving experience." He said that he had told Brown to stop working off the clock in 2008. He said that he had been told that Brown had passed MAPP, but he did not have access to her scores.

         Dante Tippin testified that he is a business manager with UPS and had been in Texarkana from September 2004 until April 2008 as an on-road supervisor. He said that Pilz was hired after he began there, and she was a part-time package-center supervisor. It was his opinion that driving experience would be helpful in a supervisor's job.

         Louise Pilz testified that she performs full-time supervisor duties, but she has never made more than $38, 000 a year at UPS. She said that Kim Loftin was her center manager for a year and a half. She said that she began work as a temporary employee in June 2005 and that after two months she took a management test, passed it, and began working in September 2005 as a part-time supervisor. In November 2005, Pilz was made a permanent employee.

         Pilz said that she performs the job of full-time supervisor in some areas and regularly exceeds thirty-three hours a week. She said that she works in the evenings and that there is not a full-time supervisor working at that time. She testified that she is sixty-five years old and loves her job. She said that she wants equal pay as a full-time employee and that she does not have any driving experience. She said that Kim Loftin had not given her an opportunity to get that training, and she had not asked him, or anyone, what she needed to do. She thought that after she had passed MAPP she was qualified and eligible to be a fulltime supervisor or a full-time specialist. She claimed that no one ever told her that she needed driving experience. She said that Loftin had lied to her when he told her there was no opening for a full-time supervisor. She said that James Thompson, a driver from Fort Worth, got the position and that Thompson did not have any supervisory experience. She said that she felt like she had been stepped over for promotion because she is a female and that her hours were changed in retaliation for her not being able to go in to work early on two occasions. She applied for two on-car supervisor positions in 2014 and was not hired. Pilz also complained that she worked by herself at night with no way to lock the doors. She said that when the locks were replaced, the doors could only be locked from the outside, which did not help her to feel more secure. She said that other than the friction with Kim Loftin, she had been treated fairly by everyone at the Texarkana center.

         Raymond Battle testified that he has been with UPS since 1976 and is the division manager for three-quarters of Arkansas. He is responsible for the Texarkana center, and he was the division manager in Texarkana in 2013 and 2014. He said that he relied on Kim Loftin's recommendation in filling the positions in Texarkana, that he had never considered Pilz for any promotion, and that Thompson had driving experience and no management experience. He said that lack of driving experience would not disqualify someone from an on-car supervisor job but neither would lack of managerial experience. He said that he relied on Loftin to make recommendations for those jobs. He said that even if Pilz had been in the selection pool, he would have picked the driver with the nine- to ten-year driving experience. He said that he did not hire Pilz for the second vacancy because he needed someone with driving experience. He said that the females in his division in Texarkana are given equal opportunities for career advancement.

         Yakisha Sherman testified that she is a full-time twilight-retention and training supervisor for UPS in Little Rock and had previously been in human resources as a part-time supervisor. She said that she thought Brown was a great employee, could do a fulltime supervisor's job, and had some "absenteeism." Sherman said that she had initiated MAPP for herself in 2008. She said that she was required to take a couple of tests and undergo a panel interview, and then she was told she was MAPP qualified, which was a necessary step for promotion. She said that there had been no one who had been promoted from part-time to full-time who had not gone through that process. Full-time supervisors go to presort meetings and part-time supervisors do not.

         James Kent Hardy testified that he has worked at UPS for thirty-five years and is an on-road supervisor. He knew Brown when she had worked for him as a part-time supervisor in 2002, 2003, or 2004. He said Brown was "excellent." He said that one had to have initiative to climb the ladder at UPS and that a manager's support was also needed. He did not have reason to believe that either ...

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